When FMLA Ends, the ADA May Begin

Oct 9, 2023

By Frank J. Godfrey III

These days employees often have several layers of legally protected personal and medical leave.

For example, Oregon businesses of 25 or more employees are subject to the Oregon Family Leave Act (OFLA). Oregon businesses with 50 or more employees are also subject to the Family and Medical Leave Act (FMLA). In addition to the above, Paid Leave Oregon (PLO) is now available to employees who work for businesses with 25 or more employees.

Tracking employee leave use, be it OFLA, FMLA, and/or PLO, will present businesses with new challenges given the multiple overlaps of these various leave benefits. At some point, questions arise about whether a particular employee has “exhausted” their leave before they can return to duty.

If an employee has exhausted their leave, the next question may be whether the employee can be terminated legally. This is a legitimate business question for an employer trying to make sure they have all positions functioning efficiently at the proper staff level. However, the exhaustion of all available legally protected personal and medical leave may not allow employers to terminate the employee.

The employee might inform the business during or at the end of their leave process that they are able to return to work, but they need a reasonable accommodation in order to do so. This means the employer has entered the interactive phase of the Americans with Disabilities Act (ADA). This federal statute along with Oregon’s similar disability laws provides protections to persons and employees with certain disabilities.

Employers with employees on leave should be aware of these additional legal issues. Keep in mind that if you become aware of these issues, you should discuss matters with the employee and gather information so you can make a reasonable accommodation decision. You should handle the matter like you would for any other employee’s ADA accommodation request. You should also be aware that granting additional time off in “block form” or “intermittently” is legally recognized as a form of reasonable accommodation. And the beat goes on.

If you have questions about your business’s leave policies or any other human resource law questions, feel free to reach out to us.

You can email us at info@mmgattorneys.com or give us a call at (503) 646-0566.